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Breaking point of the rule of law: Peace can’t exist in the absence of justice

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Ori Ben-zeev is an advocate of seven years’ standing at the Johannesburg Bar, with a practice that primarily involves constitutional or public law matters. He has a specific interest in domestic and international human rights law as well as access to justice.

What we fail to realise is this axiomatic principle: peace can never exist in the absence of justice, because at our very nature all humans despise and resist injustice. When people are removed from their homes, when their protests are repressed, and when their sacred places and times of worship are disrupted and violated, the law loses legitimacy.

Laws are seen as the epitome of social order and reason, and the bulwark against violence and chaos. Through law we ritualise conflict and we distil disputes so that an outcome may be reached that is respected by both the victor and the loser. It is on that basis that the rule of law is portrayed as the keystone upon which civilisation may exist and continue to exist.

The rule of law is a passage by which we can seek to escape the chaotic state of conflict and attempt to find the utopian world of peace and reason. Because of this, it is disturbing when the rule of law is disrupted – the wilderness is dark outside the confines of the legal shelters that we create. But just as the rules of physics can be used to predict the strength or collapse of a building, there are core humanistic principles that a society or a government ignores at its own peril.

The recent events between Israel and Palestine are illustrative of this fact. 

Although this is a situation that has raged for decades, the recent violence was sparked by, among other things, the threat of eviction of the Palestinian community from Sheikh Jarrah. The purpose here is not to examine the merits or demerits of that case, or to discuss the ongoing events. It is simply to demonstrate that laws have a breaking point at which they can no longer achieve the order and peace that we would like them to achieve.

The legal system is often defined as a means by which society attempts to manage or regulate human behaviour. But it is much more than that. 

Humans seek certainty and a degree of predictability in the world. We grasp on to human-made laws for the same reason that we steadfastly work to discover the laws of nature: so that we have a clear sense of what should happen next. 

Even though we know that laws are not necessarily always just, we accept them as the best reflection of justice that we may have, because, after all, justice is an asymptotic ideal that is pursued but not necessarily reached. 

We confer upon law the legitimacy of justice because it is the only way that we can elevate it to a status akin to natural laws – something sufficiently permanent and dependable so that we may predict the manner in which we should govern our lives.

When we appeal to the law, therefore, we attempt to tap into some greater narrative that we hope will tell us who the villains are and who the heroes are, as well as how the story should end. Just like the servants in the opening scenes of Romeo and Juliet, we co-opt the law to our side. If the other side is outside the law – outlaws, literally – then they are the villains, not us, and we should be entitled to write the conclusion of the conflict.

When the law is recognised by all the parties involved in the dispute, and is therefore legitimate, no difficulty arises. A decision is made in accordance with the rules and the way forward – the ending of the story – is spelled out. The outcome is accepted by everyone, whether favourable to them or not; violence is ritualised, the dispute is processed and resolved, and social order is maintained.

But when the law is not recognised by all the parties or its façade of justice falters, then it can no longer maintain or restore social order. At that point it ceases to be a tool for justice or for quelling violence and chaos. Instead, the appeal to legal narrative becomes the very catalyst of violent engagement itself.

It was this dilemma that prompted St Augustine in the fourth century to warn that an unjust law is not a law at all. This is not to suggest that laws do not or cannot exist outside the abstract framework of justice – of course they do. Instead, it is a caveat: an unjust law is unable to serve a social function in the form of maintaining social order or ritualising violence.

I believe that this level of catastrophic failure is not inevitable except when a breaking point is reached. Injustice operates on a spectrum ranging from slight inconveniences to real and significant threats. It is at that point, where the innate fight or flight response is triggered, when our lives, our dignity, our families, our homes and our livelihoods are so seriously threatened, that unjust laws will be ripped apart in a pursuit of justice. 

It is that human core that, if violated, may place law itself at risk.

It was perhaps this understanding that, in part, led to the development over the last century of an international code and system of human rights. The underlying premise of human rights law is that there must be an immutable core of principles that protect each human being at a fundamental level – a line that should not be crossed, even by the most sophisticated legal system or by the most powerful government, lest the entire system of laws collapse in a heap of injustice, violence and chaos.

Seen in this light, the concept of human rights is no mere nicety to which lip service should be paid. By enshrining the protection of that most sacred human space, it is the mainstay that supports the entire legal system. If they are abandoned, the entire body of law is put at risk.

Resistance to the principle of fundamental rights ordinarily comes from the privileged and the powerful. Frequently, the criticism is that the vulnerable and the powerless are afforded “more” rights than others. But this is a mischaracterisation on two levels.

First, the vulnerable and powerless depend on fundamental human rights more than the privileged and powerful do because this is the only protection afforded to them by an hierarchical system that, by its very nature, is oppressive and harmful. They are not afforded “more” protections: they are afforded basic fundamental protections that they desperately need.

Second, the criticism arises from a false, and sinister presupposition: the vulnerable and powerless are somehow categorically different from the critic, and the critic would never find themselves dependent on those core protections. In a sense, the accusation is that it is only “outlaws” that rely on their human rights. There is a perpetual failure to understand that if we were placed in the same scenario, and we were subjected to the same abuses, we would all probably respond in similar ways. We fail to do so because we are unable to look past our own grasped narrative and see that the division between hero and villain is paper-thin.

Insofar as the complaint is that the core defence afforded by human rights in some form or another attenuates an extant privilege or power, this again misses the point. Human rights do not exist to undermine existing rights. They exist to protect against, and to prevent, an incursion into that sacred core of humanity.

Therefore in the 2012 judgment in City of Johannesburg v Blue Moonlight Properties, Justice J van der Westhuizen, speaking on behalf of a unanimous Constitutional Court, indicated that a property owner that was not itself at risk of homelessness “may have to be somewhat patient” in the eviction of occupiers who would be rendered homeless. This did not suggest that the rights of property owners were of any lesser stature. The court clearly sought to balance the threat of homelessness against the inconvenience of the pecuniary rights of the owner. The court simply recognised – as it has many times before – that homelessness is so severe and inhumane an outcome that one could not simply allow it to occur without a real assessment of its gravity.

This is not to suggest that no incursion may be made against the fundamental rights of a person. Rather, it is that those incursions should not be made lightly. The seriousness of the line being crossed must be the central concern. Laws by their nature are a necessary inconvenience, but we maintain them because we recognise the importance of limiting our behaviour so as to maintain a peaceful, stable and predictable society.

What we fail to realise is this axiomatic principle: peace can never exist in the absence of justice, because at our very nature all humans despise and resist injustice. When people are removed from their homes, when their protests are repressed, and when their sacred places and times of worship are disrupted and violated, the law loses legitimacy.

The rule of law is a critical system that preserves a peaceful and orderly society. But if the law violates the sacred core that we all hold dear, it may not survive the repercussions. 

There are limits to what laws may achieve. 

There are lines that cannot be crossed. If the most basic recognition of human wellbeing is not maintained, then that injustice within the rule of law will be the cause of its own demise.

Just like the proverbial horseshoe nail that lost the kingdom, a violation of a person’s rights does not only place the interests of that individual at risk, but rather it threatens the existence of the entire legal system. 

This is not a hypothetical or exaggerated statement: it only took one court ruling, one eviction, and the response to one protest, for violent resistance and a reaction thereto to erupt which claimed hundreds of lives. DM

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  • A careful & considered but absolutely fair analysis of a complex issue: will no doubt attract a share of trite anti-semitic vitriol. Kudos to the author for a brave stance in articulating some serious & well thought out ideas unflinchingly.”Peace can never exist in the absence of justice”- precious!

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